Law Times

PAGE 2 JUNE 30 - JULY 7, 2008 / LAW TIMES Bans routinely imposed without notice to media Continued from page 1 Corp. (a 1994 Supreme Court decision which has been followed by other rulings expanding open court principles) and then find an exemption to the presumption of access to court records. Discretionary publication bans are routinely imposed without ad- vance notice to the media as is re- quired by law. The Supreme Court stated in R. v. Mentuck that before imposing a discretionary publica- tion ban there must be a "serious threat" to the administration of justice, which is "well-grounded" in the evidence. Yet courts often find a very low threshold to con- clude that this test has been met. In the trial of the youth in the "Toronto 18" alleged terror plot, Justice John Sproat granted an ap- plication to ban reporting of the names of the adult defendants in Practical coverage of the principles of liability connected with contaminated real estate Toxic Real Estate Manual Frederick Coburn relations and secured financing. An invaluable resource for its explanations, references and legal precedents their upcoming trial, because it could impact finding an impartial jury. "There would be few people in Peel Region who would not them- selves, or have family or friends, who ride the Toronto subway and frequent public buildings," noted Sproat in reference to the "sensa- tional" nature of the allegations. Sweeping restrictions on access to court documents and exhibits are in place as a result of the min- istry's interpretation of the 1991 Supreme Court ruling in Vickery v. Nova Scotia Supreme Court. Other provinces, such as Alber- ta have taken a completely differ- ent approach. It is up to the party seeking to restrict access to court exhibits to bring an application. In Ontario, the ministry requires the public to obtain a court order even to view most material, including victim impact statements and ex- hibit lists in criminal proceedings. The Alberta approach "has fa- and more! Toxic Real Estate Manual Order your copy today! cilitated meaningful and accurate court reporting and has also fos- tered public confidence in the ju- dicial system," says Fred Kozak, a lawyer at Reynolds Mirth Richards & Farmer LLP in Edmonton. The policy means that access issues are "addressed in a principled fashion with little or no disruption to tri- als," Kozak explains. "There is no rational basis for saying that the open court principle applies to tes- timony, but not to exhibits." In many provinces, it is an of- ficial with the court who deals with media requests for court material. A representative of Ontario Supe- rior Court Chief Justice Heather Smith did not respond to a request for comment about the policies put in place by the ministry. A year ago, the ministry created a justice-media liaison committee to deal with access issues. It has not released any details about what it is doing and one person on the com- mittee told Law Times that mem- bers are not permitted to discuss its work. Ministry spokesman Bren- dan Crawley, says he asked three committee members and they all declined to speak to Law Times. In explaining the ministry's policy, Crawley says the Vickery case and the common law "clearly assert" the judiciary's role as custo- dian of exhibits. "The court has an obligation to weigh and balance the principles of openness, pro- tection of privacy and proprietary rights and the fair administration of justice. This can not be achieved by providing presumptive access to all exhibits," says Crawley. Honickman says it's arguable whether Vickery is still the deter- mining case. "Vickery predates Dagenais, Mentuck, Vancouver Sun and the plethora of other judgments that have come from our highest courts, cases which have entrenched the open court principle into the fabric of our Constitution," he says. LT Barriers to open courts www.canadalawbook.ca LT0530 COBURN_Toxic Real Estate (LT 1-4x3).indd 1 6/25/08 2:58:50 PM July Specials Environmental Offences: Corporate Responsibility a nd Executive Liability Dianne Saxe The Ontario Municipal Act: A Comprehensive Guide M. Virginia MacLean, Q.C. and Kelly G. Yerxa a policy whereby nearly all exhibits in criminal proceedings are effectively sealed. Even documents such as exhibits lists and victim impact statements are covered by this policy that prohibits the public from viewing them without a court order. The ministry justifies the policy from one line in the 1991 Vickery v. Nova Scotia Supreme Court majority decision (court was split 6-3) that stated courts regulate access to exhibits. The Supreme Court did not consider freedom of expression guarantees in its ruling, and even though it denied a media application in Vickery, it restated the presumption of access and noted that the case was an exception to that rule. has the highest fees for a non-party simply to view a file in a civil for the public to view Court of Appeal and Divisional Court files. There was previously no charge to view these files. rior Court or provincial court rulings (the Court of Appeal posts its decisions online). Some decisions are forwarded to CanLii and are posted days later on its web site. Hard copies of some rulings continue to be placed in a several-years-old wooden box in the reception area of judges' administration in the Superior Court building in Toronto. Outside of Toronto or Ottawa, very few Superior Court decisions are posted online, and the ones that do become public several weeks after they have been issued. An official in the office of Chief Justice Heather Smith said the size of Ontario makes it difficult to put in place a web site with decisions posted promptly. Ontario Environmental Protection Act Annotated Dianne Saxe The Prosecution and Defence of Environmental Offences Stanley D. Berger General. It is a policy that only Brendan Crawley can speak publicly about any media inquiry in the province. tion system for upcoming applications for discretionary publication bans or sealing orders. The so-called Dagenais/Mentuck test requires that the media be notified in advance of an application. In practice, notification is haphazard and depends on a judge following the Su- preme Court on this issue. — Shannon Kari www.lawtimesnews.com 6/25/08 3:00:29 PM access details about criminal or civil court proceedings. A computer at the Superior Court building in Toronto will tell you the names of parties and other details in civil proceedings, but only ones filed in that city. In Newmarket, the public must take a number and line up to speak to a clerk about any proceeding. Other provinces have central databases that can be accessed online. In B.C., there is a move to e-filing in civil proceedings, which can be accessed and downloaded for a fee. Every court building has a public computer to search details about criminal proceedings across B.C. There is no public electronic access of the criminal courts system in Ontario.

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